Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Saturday, September 30, 2006

(Welcome, Instapunditeers, and thanks, Glenn, for another Instalanche! I've cleaned up the grammar in this post a bit and added some links and references for further reading if anyone is interested.)

Charles Dunlap is one of the finest military lawyers around - deputy judge advocate general of the Air Force - and someone who knows as well as anyone in the US does the pros and cons of having the military involved in law enforcement in both practical and theoretical ways. This op ed column in today's Washington Post, "Putting Troops on the Beat," September 30, 2006, here, is very important reading:

... The 1878 Posse Comitatus Act bars most direct military involvement in law enforcement, with several exceptions, including civil disturbances. Since Sept. 11, 2001, such threats as terrorist use of weapons of mass destruction have given the armed forces new legal authority. Should there be more?

Americans don't seem especially worried about increasing the full-time military's role. Despite troubles in Iraq and detainee abuse scandals, polls show that the armed forces are the most trusted institution in American society. Nevertheless, few models exist around the world in which the recurring use of militaries in law enforcement furthers democratic values.

Yes, it's true that military troops, unlike civilian police, can't quit their posts. But it's dangerous to think veterans of the mean streets of Fallujah would necessarily approach a task the way Big Easy cops on the beat would. In this respect, the military's versatility can be misunderstood.Most conventionally trained soldiers advance on potential threats with a view toward destroying them, not arresting them. They don't expect to reason with "the enemy." A soldier's authority is his weapon and his willingness to use it.

Typically, police rely on public respect for the rule of law, expressed in the authority of the badge. They exercise the studied restraint the judicial process requires. Suspects are not "enemies" but citizens, innocent until proven guilty. The elimination of "threats" is the job of the courts. Weapons are defensive last resorts.

Converting the war-fighting mind-set of the professional military to one that readily accepts the risks -- and delays -- inherent in policing under our Constitution can be extremely challenging and confusing to those wielding the guns and attempting to establish order.I've written on the differences between soldiers and police before, in the peculiar context of a 1997 panel discussion at the American Society of International Law on law and literature. I chose as my text Nicholas Shakespeare's novel of the capture of Abimael Guzman, charismatic founder of Peru's vicious Sendero Luminoso terrorist/guerrilla group, The Dancer Upstairs (Istrongly recommend, by the way, the film version directed by John Malkovich). (In two parts, pdf, here and here.) I talk about three differences, which are quite similar to what Dunlap says above:

First, police depend for their authority on the fundamental legitimacy of their role in society - the fact that they are perceived as the face of the rule of law and, hence, represent the extraordinary, rather than routine, intervention. The authority of soldiers, as Dunlap well puts it, is their weapon and the willingness to use it. Armies establish their "legitimacy" by killing and destroying opposition to their will. Police, by contrast, must rely, 99.9% of the time, on their legitimacy within a community, the fact that their authority is accepted by the community. Soldiers fight "enemies" who, in the pure conception of war, are enemies from another political come to do violence to yours; police deal with those who "deviate" from broadly accepted social norms within a given domestic political community.

Second, the function of police is literally to "arrest" - that is, stop and apprehend - suspects. The function of soldiers is to destroy an enemy's will to resist. They are fundamentally different things. The move to apprehend, to stop, to freeze and seize is a corollary of the fact that social deviancy within a society, even when it is horrifically violent, is not seen as "war," war upon that society.

Third, the tactics and, accordingly, weapons of police differ profoundly from soldiers. War accepts the concept of collateral damage in a way that policework does not. In preventing a bank robbery in a crowded lobby, for example, a police officer is not entitled to make a proportionality calculation that the possible dead civilians might be justified by the ability to stop the robbery. Policework accepts restraints on violence by the police in ways that are utterly different for soldiers in war. Moreover, the level of weapons systems reflect this as well; it is not "policework" if your police use mortars, for example, it is war - or, under some circumstances, terror.

These differences are fundamental to the respective roles of police and soldiers - to the fact that police have a role within society whereas soldiers in their purest conception are about the protection of society's perimeter from its external enemies.

Terrorism seems to blur these roles, for the reason that today's transnational jihadist terrorists are both enemies and criminals - enemies of our domestic political community and its constitutional order, but also criminals who pursue their war by criminal means. Policework - law enforcement - criminal law - is insufficient to deal with them because they are not just criminals but also enemies. But pure war, in the classic sense of a clash of sovereigns, is not precisely what the struggle is all about because they are not just "ordinary" enemies - "ordinary" enemies who, when captured, for example, entitled to be treated as honorable POWs - but instead also criminals, unprivileged belligerents who pursue their war without regard to the most fundamental laws and customs of war and who, because they are untethered to a state and to the defense of any particular population, feel no constraint of reciprocity in their conduct.

(I say more about the difference between criminals and enemies, and terrorists as criminals and enemies, free at SSRN here, in a 2002 law review article (pdf) - it is toward the end. I also say more about it in a very short way, at SSRN here, in an op ed in the New York Times Magazine in September 2006. And I say still more about it in an essay called "Law and Terror" in Policy Review, appearing sometime in the next couple of weeks.

Update, Sunday, October 1, 2006. Let me add a fourth. In policework, the police are "good" guys and the criminal suspects "bad" guys. In war, so long as soldiers on all sides conform to the laws of war - maintain their status as lawful belligerents - they are simply soldiers, and the law does not impute to them liability for the reasons for fighting. This, if course, is the distinction between jus ad bellum, the law governing the legal recourse to force, and jus in bello, the law governing the conduct of fighting. Ordinary soldiers are legally responsible only for the latter, jus in bello, the conduct of fighting, not the reasons why their state or society undertook war. That means that it is permissible for soldiers to treat each other as targets and shoot at each other.

With police and criminals, matters are entirely different. Police are never a legal target for criminals; shooting at police is another crime atop whatever crime started things. The assumption is that within a settled domestic society, violence is not an option and that police hold the legitimate monopoly on violence - with some exceptions such as self-defense or defense of others when there are no police around - and so police are never legitimate targets.

Why does this last, fourth point matter? It matters - more exactly, it produces many conceptual and practical problems - when it is sought to be adapted (as metaphor) to uses of force by, for example, the United Nations. The UN seeks, entirely unrealistically and indeed morally wrongly, to think of itself and its uses of force in the world as "policework." Since its overall aim, and self-conception, is to think of itself as the world's government, and the world as something gradually evolving to a unitary global society, then the UN's use of force is not "war" - and, anyway, as we all know, war is bad, the UN is good, and so of course the UN does not engage in war - but instead just what police do in a settled domestic society. Granted, it doesn't quite work out like that, and we notice than in these so-called "police actions," the forces used are in fact soldiers, the weapons used are weapons of war, not police, and the concept of collateral damage entirely accepted. Nonetheless, the conception - quite mistaken, and dangerously mistaken, in my view - is that these war-like exercises are a form of policework, albeit adapted to a global(izing) society.

And the corollary is that these police (who are actually soldiers) cannot be fought against - even though they look like soldiers, fight like soldiers, and even though you, whoever "you" are, think that they are the "enemy" on the other side, not policemen, to shoot at them is a crime, just as it would be to shoot at a police officer in a bank robbery. This clash of paradigms, war and policework, results in a practical dilemma. Countries which contribute various kinds of peacekeeping and peace enforcement troops to the UN would often like to see a rule that says it is a war crime to shoot at them. This runs counter, however, to the laws of war, which take no sides, even as between the UN and other armed forces, as to whose cause is right and whose is wrong, so long as the fighters conduct themselves properly in their fighting. The rules of war provide that a fighter who obeys the laws of war, regardless of whether he is on the good side or the bad side, benefits from the combatants privilege (I am leaving a lot of stuff aside, such as differences between internal and international wars). If you say that shooting at UN troops is a war crime, you are saying, in effect, that the laws of war take sides as to reasons for fighting.

This dilemma is not very comfortably resolved, at this point, by drawing a difference between "neutral" peacekeeping troops, whose mandate requires that they do not take sides, and peace enforcement operations, where the UN has taken a side or a cause as its own, under the authority of the Security Council, such as the first Gulf War. In the peacekeeping case, there is movement to treat targeting neutral peacekeeping forces as a war crime, whereas where the UN explicitly takes sides, then the laws of war would apply as they normally do. One of several difficulties, of course, is that what it means to be "neutral" as armed peacekeeping troops is not so very clear ...

Let me also add, responding to something said in the comments, that the deployment of the military in the War on Drugs has seemed to me a very bad long term idea, for all the above reasons. Likewise the Clinton-period view (which might, of course, make a comeback post Bush) that counterterror requires military commandos to get the bad guys - and the FBI agent on the scene to read them their rights; the combination of these two fundamentally different paradigms is a grave conceptual error about the nature of the terrorism we confront. And the long term use of the military to patrol the borders; unless we intend to shoot all the Mexicans, Central Americans and other civilians coming across the Rio Grande, the military is the wrong long term option (I understand that due to the neglect of this issue over a long time, in the short term it may be necessary).

7 comments:

Anonymous
said...

Which is why the current trend in militarization of the police to fight the War on Drugs is also a bad thing. Growing quick and ready use of commando style raids and "less than lethal" means of violence causes more problems than they solve.

Third, the tactics of police differ from soldiers in that soldiers accept collateral damage in a way that police work does not - moreover, the level of weapons systems accept that as well; it is not policework if your police use mortars, for example, it is war.

Anyone who believes that the police aren't willing to inflict collateral damage on the civilian population they supposedly "serve and protect" hasn't been reading Radley Balko's collected stories of paramilitary police raids. And the prosecutors, who should be excercising some oversight, are willing to accept whatever the police do, including murder.

As Commander Adama said in Battlestar Galactica, "There's a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people. "